guilty plea waiver in New York

2016These requirements — with the exception of a claim of hearsay, which is waived if it is not raised in a timely motion, and forfeited as a consequence of a guilty plea (see People v Keizer, 100 NY2d 114, 121 [2003]) — are jurisdictional (see People v Casey, 95 NY2d at 363-365 ), and defendant’s jurisdictional challenge survives both a guilty plea and the waiver of the right to appeal (People v Oliveri, 49 AD3d 1208, 1209 [2008]; see People v Lopez, 6 NY3d 248, 255 [2006]; People v Hansen, 95 NY2d 227, 230-231 [2000]; People v June, 30 AD3d 1016, 1017 [2006]).

2008Although a defendant’s jurisdictional challenge survives both a guilty plea and waiver of the right to appeal (see People v Hansen, 95 NY2d 227, 230-231 [2000]; People v June, 30 AD3d 1016, 1017 [2006], lv denied 7 NY3d 813 , 868 [2006]), here we reject defendant’s jurisdictional challenge.

2019Even assuming, arguendo, that defendant's contention that the proceedings were electronically recorded and later transcribed in violation of Judiciary Law § 295 survives both the guilty plea and waiver of the right to appeal ( see generally People v Harrison , 85 NY2d 794, 796-797 [1995]), we conclude that the contention is unpreserved because defendant did not object to the use of the electronic recording device or the absence of a stenographer ( see People v Bennett , 165 AD3d 1624 , 1625 [4th Dept 2018]; People v Rogers , 159 AD3d 1558 , 1559 [4th Dept 2018], lv denied 31 NY3d 1152 [2018]).

2019Finally, even assuming, arguendo, that defendant's contention that the proceedings were electronically recorded and later transcribed in violation of Judiciary Law § 295 survives both the guilty plea and waiver of the right to appeal ( see People v Harrison , 85 NY2d 794, 796 [1995]), that contention is unpreserved because defendant did not object to the use of the electronic recording device or the absence of a stenographer ( see People v Votra , 173 AD3d 1643 , 1644 [4th Dept 2019]; People v Bennett , 165 AD3d 1624 , 1625 [4th Dept 2018]; People v Rogers , 159 AD3d 1558 , 1559 [4th Dept 2018

2016These requirements — with the exception of a claim of hearsay, which is waived if it is not raised in a timely motion, and forfeited as a consequence of a guilty plea (see People v Keizer, 100 NY2d 114, 121 [2003]) — are jurisdictional (see People v Casey, 95 NY2d at 363-365 ), and defendant’s jurisdictional challenge survives both a guilty plea and the waiver of the right to appeal (People v Oliveri, 49 AD3d 1208, 1209 [2008]; see People v Lopez, 6 NY3d 248, 255 [2006]; People v Hansen, 95 NY2d 227, 230-231 [2000]; People v June, 30 AD3d 1016, 1017 [2006]).

2008Although a defendant’s jurisdictional challenge survives both a guilty plea and waiver of the right to appeal (see People v Hansen, 95 NY2d 227, 230-231 [2000]; People v June, 30 AD3d 1016, 1017 [2006], lv denied 7 NY3d 813 , 868 [2006]), here we reject defendant’s jurisdictional challenge.

2015We do not find that conditioning a guilty plea on the waiver of the statutory right to apply for conditional release on parole falls within this “tightly circumscribed class” of fundamental errors for which preservation is not required and to which a defendant cannot consent as part of a plea agreement (People v Kelly, 5 NY3d 116, 120 [2005]; see People v Hanley, 20 NY3d at 604 ; People v Becoats, 17 NY3d 643, 651 [2011], cert denied 566 US —, 132 S Ct 1970 [2012]; People v Patterson, 39 NY2d 288, 295 [1976], affd 432 US 197 [1977]).

2015We do not find that conditioning a guilty plea on the waiver of the statutory right to apply for conditional release on parole falls within this “tightly circumscribed class” of fundamental errors for which preservation is not required and to which a defendant cannot consent as part of a plea agreement (People v Kelly, 5 NY3d 116, 120 [2005]; see People v Hanley, 20 NY3d at 604 ; People v Becoats, 17 NY3d 643, 651 [2011], cert denied 566 US —, 132 S Ct 1970 [2012]; People v Patterson, 39 NY2d 288, 295 [1976], affd 432 US 197 [1977]).

2015We do not find that conditioning a guilty plea on the waiver of the statutory right to apply for conditional release on parole falls within this “tightly circumscribed class” of fundamental errors for which preservation is not required and to which a defendant cannot consent as part of a plea agreement (People v Kelly, 5 NY3d 116, 120 [2005]; see People v Hanley, 20 NY3d at 604 ; People v Becoats, 17 NY3d 643, 651 [2011], cert denied 566 US —, 132 S Ct 1970 [2012]; People v Patterson, 39 NY2d 288, 295 [1976], affd 432 US 197 [1977]).

2015We do not find that conditioning a guilty plea on the waiver of the statutory right to apply for conditional release on parole falls within this “tightly circumscribed class” of fundamental errors for which preservation is not required and to which a defendant cannot consent as part of a plea agreement (People v Kelly, 5 NY3d 116, 120 [2005]; see People v Hanley, 20 NY3d at 604 ; People v Becoats, 17 NY3d 643, 651 [2011], cert denied 566 US —, 132 S Ct 1970 [2012]; People v Patterson, 39 NY2d 288, 295 [1976], affd 432 US 197 [1977]).

2015We do not find that conditioning a guilty plea on the waiver of the statutory right to apply for conditional release on parole falls within this “tightly circumscribed class” of fundamental errors for which preservation is not required and to which a defendant cannot consent as part of a plea agreement (People v Kelly, 5 NY3d 116, 120 [2005]; see People v Hanley, 20 NY3d at 604 ; People v Becoats, 17 NY3d 643, 651 [2011], cert denied 566 US —, 132 S Ct 1970 [2012]; People v Patterson, 39 NY2d 288, 295 [1976], affd 432 US 197 [1977]).

2015We do not find that conditioning a guilty plea on the waiver of the statutory right to apply for conditional release on parole falls within this “tightly circumscribed class” of fundamental errors for which preservation is not required and to which a defendant cannot consent as part of a plea agreement (People v Kelly, 5 NY3d 116, 120 [2005]; see People v Hanley, 20 NY3d at 604 ; People v Becoats, 17 NY3d 643, 651 [2011], cert denied 566 US —, 132 S Ct 1970 [2012]; People v Patterson, 39 NY2d 288, 295 [1976], affd 432 US 197 [1977]).

2015We do not find that conditioning a guilty plea on the waiver of the statutory right to apply for conditional release on parole falls within this “tightly circumscribed class” of fundamental errors for which preservation is not required and to which a defendant cannot consent as part of a plea agreement (People v Kelly, 5 NY3d 116, 120 [2005]; see People v Hanley, 20 NY3d at 604 ; People v Becoats, 17 NY3d 643, 651 [2011], cert denied 566 US —, 132 S Ct 1970 [2012]; People v Patterson, 39 NY2d 288, 295 [1976], affd 432 US 197 [1977]).

2015We do not find that conditioning a guilty plea on the waiver of the statutory right to apply for conditional release on parole falls within this “tightly circumscribed class” of fundamental errors for which preservation is not required and to which a defendant cannot consent as part of a plea agreement (People v Kelly, 5 NY3d 116, 120 [2005]; see People v Hanley, 20 NY3d at 604 ; People v Becoats, 17 NY3d 643, 651 [2011], cert denied 566 US —, 132 S Ct 1970 [2012]; People v Patterson, 39 NY2d 288, 295 [1976], affd 432 US 197 [1977]).

2012Assuming, arguendo, that defendant’s contention otherwise survives the guilty plea and his waiver of the right to appeal, we conclude that he received meaningful representation (see generally People v Ford, 86 NY2d 397, 404 [1995]).

2007To the extent that the contention of defendant that he was denied effective assistance of counsel survives the guilty plea and the waiver of the right to appeal (see People v Fifield, 24 AD3d 1221 , 1222 [2005], lv denied 6 NY3d 775 [2006]), we conclude that it is without merit (see generally People v Ford, 86 NY2d 397, 404 [1995]).

2021Although this claim survives a guilty plea and waiver of appeal ( see People v Callahan , 80 NY2d 273, 282 [1992]), it is unpreserved for our review because it was not raised before Supreme Court ( see People v Grays , 179 AD3d 1149, 1150 [2020]; People v Marshall , 173 AD3d 1257 , 1258 [2019]; People v Gardiner , 159 AD3d at 1234; People v Grumberg , 153 AD3d 1525, 1526-1527 [2017]).

1997Contrary to defendant’s assertion, we do not find his claim to be within the category of appellate claims which survive such a guilty plea waiver (see, People v Callahan, 80 NY2d 273, 280 ; People v Seaberg, 74 NY2d 1, 9 ; People v King, 204 AD2d 993 , lv denied 84 NY2d 828 ).

2012Defendant’s further contention that he received ineffective assistance of counsel does not survive the guilty plea or the waiver of the right to appeal inasmuch as “defendant failed to demonstrate that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of [defense counsel’s] allegedly poor performance” (People v Gleen, 73 AD3d 1443, 1444 , lv denied 15 NY3d 773 [internal quotation marks omitted]).

2012Defendant’s further contention that he received ineffective assistance of counsel does not survive the guilty plea or the waiver of the right to appeal inasmuch as “defendant failed to demonstrate that the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of [defense counsel’s] allegedly poor performance” (People v Gleen, 73 AD3d 1443, 1444 [2010], lv denied 15 NY3d 773 [2010] [internal quotation marks omitted]).

2010Given the valid waiver of appeal, defendant is precluded from challenging the factual sufficiency of his plea allocution (see People v Harris, 51 AD3d 1335, 1336 [2008], lv denied 11 NY3d 789 [2008]), and his affirmative answers during County Court’s inquiry neither cast doubt on his guilt nor otherwise suggest that his plea was not voluntary (see People v Mason, 66 AD3d 1225, 1227 [2009]; People v Pringle, 10 AD3d 802, 803 [2004]).

2009To the extent that the further contention of defendant in his pro se supplemental brief concerning ineffective assistance of counsel survives the guilty plea and waiver of the right to appeal, defendant failed to preserve that contention for our review “inasmuch as he did not move to withdraw his plea or to vacate the judgment of conviction on that ground” (People v White, 37 AD3d 1112, 1113 [2007]; see People v Hall, 50 AD3d 1467, 1468-1469 [2008], lv denied 11 NY3d 789 [2008]).

2025Assuming, but not deciding, that defendant has asserted jurisdictional matters and rights of a constitutional dimension, rather than evidentiary or technical matters, as well as the prosecutor's fair dealing, his contentions are not forfeited by his plea and appeal waiver ( see People v Manragh , 32 NY3d 1101, 1102 [2018]; People v Hansen , 95 NY2d 227, 231 [2000]; People v Sheppard , 221 AD3d 1513, 1514 [4th Dept 2023], lv denied 41 NY3d 985 [2024]).

2025Assuming, but not deciding, that defendant has asserted jurisdictional matters and rights of a constitutional dimension, rather than evidentiary or technical matters, as well as the prosecutor's fair dealing, his contentions are not forfeited by his plea and appeal waiver ( see People v Manragh , 32 NY3d 1101, 1102 [2018]; People v Hansen , 95 NY2d 227, 231 [2000]; People v Sheppard , 221 AD3d 1513 , 1514 [4th Dept 2023], lv denied 41 NY3d 985 [2024]).

2024Footnotes Footnote 1: As the validity of a waiver of indictment is jurisdictional in nature, it may not be waived by a guilty plea or waiver of appeal and is not subject to the preservation rule ( see People v Pierce , 14 NY3d 564 , 570 n 2 [2010]; People v Zanghi , 79 NY2d 815, 817 [1991]; People v Odu , 211 AD3d 1340 , 1341 n 1 [3d Dept 2022]).

2021Although this claim survives a guilty plea and waiver of appeal ( see People v Callahan , 80 NY2d 273, 282 [1992]), it is unpreserved for our review because it was not raised before Supreme Court ( see People v Grays , 179 AD3d 1149, 1150 [2020]; People v Marshall , 173 AD3d 1257 , 1258 [2019]; People v Gardiner , 159 AD3d at 1234; People v Grumberg , 153 AD3d 1525, 1526-1527 [2017]).

2021Moreover, in the absence of a motion on this ground before Supreme Court, "the record has not been sufficiently developed to permit adequate review of this issue" ( People v Grumberg , 153 AD3d at 1527 ; see People v Grays , 179 AD3d at 1150 ).

2021Although this claim survives a guilty plea and waiver of appeal ( see People v Callahan , 80 NY2d 273, 282 [1992]), it is unpreserved for our review because it was not raised before Supreme Court ( see People v Grays , 179 AD3d 1149, 1150 [2020]; People v Marshall , 173 AD3d 1257 , 1258 [2019]; People v Gardiner , 159 AD3d at 1234; People v Grumberg , 153 AD3d 1525, 1526-1527 [2017]).

2021Moreover, in the absence of a motion on this ground before Supreme Court, "the record has not been sufficiently developed to permit adequate review of this issue" ( People v Grumberg , 153 AD3d at 1527 ; see People v Grays , 179 AD3d at 1150 ).

2020Specifically, defendant contends that the failure to include in the waiver of indictment or SCI a reference to the approximate time and place of the alleged offenses constitutes a jurisdictional defect, rendering the waiver of indictment invalid. [FN1] Preliminarily, we note that this Court, relying on People v Boston ( 75 NY2d 585, 589 [1990]), has previously held that the failure to strictly comply with the statutory requirements for waiving indictment pursuant to CPL 195.20 — including the failure to include the approximate time of each offense charged in the waiver of indictment or SCI — c

2019Regardless, neither reversal nor a reconstruction hearing is required here because defendant failed to demonstrate that he was prejudiced by the use of a transcribed recording instead of a stenographer ( see Harrison , 85 NY2d at 796 ; cf. People v Henderson , 140 AD3d 1761, 1761 [4th Dept 2016]).

2018Footnotes Footnote 1: A challenge to the legality of a sentence is not precluded by a guilty plea or the waiver of the right to appeal ( see People v Pacherille , 25 NY3d 1021, 1023 [2015]; People v Mangarillo , 152 AD3d 1061, 1061-1062 [2017]).

2018Footnotes Footnote 1: A challenge to the legality of a sentence is not precluded by a guilty plea or the waiver of the right to appeal ( see People v Pacherille , 25 NY3d 1021, 1023 [2015]; People v Mangarillo , 152 AD3d 1061, 1061-1062 [2017]).

2016The law does not require that the most precise words or phrases which most clearly express the thought be provided in an information, but only that the crime be alleged and the specifics set forth so that a defendant can prepare himself for trial, and so that he will not be tried again for the same offense (People v Konieczny, 2 NY3d 569, 575 [2004]; People v Casey, 95 NY2d at 360).

2016These requirements — with the exception of a claim of hearsay, which is waived if it is not raised in a timely motion, and forfeited as a consequence of a guilty plea (see People v Keizer, 100 NY2d 114, 121 [2003]) — are jurisdictional (see People v Casey, 95 NY2d at 363-365 ), and defendant’s jurisdictional challenge survives both a guilty plea and the waiver of the right to appeal (People v Oliveri, 49 AD3d 1208, 1209 [2008]; see People v Lopez, 6 NY3d 248, 255 [2006]; People v Hansen, 95 NY2d 227, 230-231 [2000]; People v June, 30 AD3d 1016, 1017 [2006]).

2016These requirements — with the exception of a claim of hearsay, which is waived if it is not raised in a timely motion, and forfeited as a consequence of a guilty plea (see People v Keizer, 100 NY2d 114, 121 [2003]) — are jurisdictional (see People v Casey, 95 NY2d at 363-365 ), and defendant’s jurisdictional challenge survives both a guilty plea and the waiver of the right to appeal (People v Oliveri, 49 AD3d 1208, 1209 [2008]; see People v Lopez, 6 NY3d 248, 255 [2006]; People v Hansen, 95 NY2d 227, 230-231 [2000]; People v June, 30 AD3d 1016, 1017 [2006]).

2016The law does not require that the most precise words or phrases which most clearly express the thought be provided in an information, but only that the crime be alleged and the specifics set forth so that a defendant can prepare himself for trial, and so that he will not be tried again for the same offense (People v Konieczny, 2 NY3d 569, 575 [2004]; People v Casey, 95 NY2d at 360).

2016These requirements — with the exception of a claim of hearsay, which is waived if it is not raised in a timely motion, and forfeited as a consequence of a guilty plea (see People v Keizer, 100 NY2d 114, 121 [2003]) — are jurisdictional (see People v Casey, 95 NY2d at 363-365 ), and defendant’s jurisdictional challenge survives both a guilty plea and the waiver of the right to appeal (People v Oliveri, 49 AD3d 1208, 1209 [2008]; see People v Lopez, 6 NY3d 248, 255 [2006]; People v Hansen, 95 NY2d 227, 230-231 [2000]; People v June, 30 AD3d 1016, 1017 [2006]).

2016These requirements — with the exception of a claim of hearsay, which is waived if it is not raised in a timely motion, and forfeited as a consequence of a guilty plea (see People v Keizer, 100 NY2d 114, 121 [2003]) — are jurisdictional (see People v Casey, 95 NY2d at 363-365 ), and defendant’s jurisdictional challenge survives both a guilty plea and the waiver of the right to appeal (People v Oliveri, 49 AD3d 1208, 1209 [2008]; see People v Lopez, 6 NY3d 248, 255 [2006]; People v Hansen, 95 NY2d 227, 230-231 [2000]; People v June, 30 AD3d 1016, 1017 [2006]).